Economy & Business

Bad Regulations Can Kill: El Faro’s Sinking Is a Tragic Example

The El Faro at sea on an earlier voyage

The search for survivors from El Faro has been called off, the crew consigned to the depths. We are left to mourn the loss of 33 brave mariners, 28 of whom were American. But as we mourn, we should also be angered, because their deaths may very well have been avoidable. Hurricane Joaquin wasn’t the sole culprit; it had an accomplice, and that accomplice is a monstrous piece of legislation known as the Jones Act.

Between the lines of this disaster, something should jump out at the reader: What were those sailors, in the middle of a Category 4 hurricane, doing onboard a vessel dating back to the Ford administration? In an era where we replace our phones every two years and trade in our car leases in not much longer than that, why is it that these people were stranded in the middle of a maelstrom aboard what El Faro seaman Chris Cash called a “rust bucket”?

The answer is the Jones Act, a little-known cabotage act from 1920 that first killed American shipbuilding and now has had its hand in killing American sailors. The act is a voluminous piece of legislation filled with onerous requirements and petty regulations, but it is most widely known for its two principle requirements. First, it specifies that a U.S.-flagged ship must be crewed by American citizens. Second, it requires all Jones Act–compliant vessels, and by extension vessels engaged in intrastate transportation, to be built in America. The first requirement is arguably rooted in a legitimate national-security interest, such as clearances for crews sailing past sensitive infrastructure (e.g., Boston’s liquid-natural-gas terminal) and for those who participate in sealift operations in times of national emergency.

The second requirement, however, has been devastating: It has made the U.S.-flagged fleet the oldest of any developed nation in the world. The ban on intrastate transportation using foreign vessels means that if you want to take a car from Jacksonville, Fla., to Puerto Rico, it will have to be on a ship built in the United States. The rub: Regulations have strangled domestic construction, to the point that it’s nearly impossible to build a vessel in the United States.

Ship owners, such as the Tote Company, which probably did an admirable job in maintaining El Faro (she was last retrofitted in 2006), have no choice but to use Jones Act vessels. Building a new one is far too costly; for instance, it would costs $40 million to build a medium-sized crude-oil tanker in Korea or Japan, but $160 million to build it at one of the three U.S. shipyards capable of the task. Further, even if you could afford to build it in the U.S., you might not get a building slot; the yards are full for nearly the coming decade, mostly fulfilling Navy contracts.

#share#So how does this all relate to El Faro? In the distress call to the Coast Guard, El Faro’s crew reported that they had lost propulsion. Even under normal circumstances, her old engine and turbine were difficult to maintain, but in a Category 4 hurricane, the task probably became impossible. In all likelihood, losing propulsion and engine power meant that waves were crashing against the ship’s beam, or the side of the ship, greatly increasing the risk of capsizing. The open interior decks for cars would have quickly filled with water once she began listing, and she may have capsized in a matter of minutes.

In this life-or-death situation, being able to keep the vessel pointed into the massive 40- to 50-foot swells could have kept everyone alive. A modern vessel with redundant controls, dynamic GPS-guided positioning, and bow and stern thrusters would have been much more capable of angling the boat into the swells.

The American Bureau of Shipping is one of the few shipping societies that regularly classes ships older than 30.

The tragic truth is that in most of the world’s developed countries, vessels such as El Faro would never pass inspection. The American Bureau of Shipping is one of the few shipping societies that regularly classes ships older than 30. That’s beyond the age when most ships are recycled, often in famously polluted landing slots for demolition on the beaches of Pakistan and Bangladesh. A joke in the international shipping community is that there are only two types of owners who sail vessels more than 30 years old: African-ivory smugglers and Jones Act carriers. According to Clarkson’s Shipping Intelligence Network, a respected maritime database, the age of the global container fleet is roughly 10.3 years; in the U.S., it is 26.5 years, with 41 percent of the American fleet older than 30.

Despite two retrofits by her owners, there is simply no way that El Faro’s hull design and structural integrity could provide the type of commonplace safety and environmental features that vessels today have, even ones built in China.

This problem is only getting worse. The acceptable age of vessels is decreasing because of the rise of hybrid electric–liquid-natural-gas engines, and because of new international sulfur regulations that have begun to upend vessel economics and design. Older vessels are simply becoming more and more uncompetitive.

We haven’t even attempted to catalogue here the litany of environmental, naval, and logistical harms that the Jones Act causes the United States — suffice it to say they are overwhelming. So let’s finally be done with it: Let’s kill the Jones Act. We even have the perfect name for the legislation to do it: the El Faro Act, in honor of the sailors who may have perished because of this 100-year-old protectionist folly.

Eftychis John Gregos-Mourginakis and Joshua Jacobs are co-founders and members of the board of the Conservative Future Project, an organization working to unleash America’s 21st-century frontier economy.

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